Commentary - Art. 21. Part II : General protection of populations against certain consequences of war

ARTICLE 21. -- LAND AND SEA TRANSPORT

[p.170] 1. ' Definition '

This Article only applies to transport conveying the wounded and sick civilians, the infirm or maternity cases, in convoys of vehicles or in hospital trains on land or, at sea, by vessels provided for the purpose. Medical transport by air will be dealt with in the next Article . A convoy of vehicles means a number of vehicles forming a column. The presence of a convoy commander, with authority over the drivers and escort, gives an organized character to such a mobile unit. The Article is restricted to transport in convoys; medical transport in the form of single vehicles is therefore excluded from its scope. The word "vehicle" must be taken in the broadest possible sense: it covers any means of transport by land; it need not necessarily be used solely for medical purposes. It will be enough if it is so used occasionally and temporarily, provided, of course, that while so employed it is not used for any other purpose. A medical convoy composed of horsedrawn vehicles normally used for transporting agricultural produce and occasionally used in the service of the wounded, must, therefore, be protected in the same way as a convoy of specially designed ambulances (1). The soundness of this provision does not seem open to question. It is vitally necessary for the wounded to be transported to hospital as quickly as possible. Motor ambulances used solely for such work will not always be ready available and, as has often happened, any vehicle available will be used. It must not be possible to use this as an excuse for opening fire on transport carrying wounded or sick people. Hospital trains are expressly mentioned in this Article as one of the forms of land transport. They are mobile units on rail, and are composed of carriages used for the hospital treatment, and transport of the wounded, the sick and other persons in like case. Here again it is not necessary for them to be used exclusively for medical purposes. In cases where they are so used temporarily or occasionally, protection under the Article is of course confined to the actual duration of their use as hospital trains. Sea transport must be by "specially provided vessels"; the word "specially" has been omitted in the French version, as the Diplomatic Conference considered that the word "affectés" already implied that [p.171] the vessels were specially provided. The discussion which took place on the subject in the Plenary Assembly of the Diplomatic Conference brought out quite clearly that the word "provided" (in the French text "affectés") does not necessarily mean permanently provided; it will suffice if the vessels are provided occasionally (2). In order to enjoy protection under Article 21 it is not necessary for those concerned to be conveyed by sea in hospital ships proper, i.e. vessels constructed or specially equipped solely for that purpose; any merchant vessel used temporarily as a hospital ship is protected under the provision. Nor is it necessary for merchant vessels which have been converted into hospital ships to be used for medical transport throughout the hostilities. On that point the present provision differs from that contained in Article 33 of the Second Geneva Convention of 1949. Apart from the crew, a hospital staff and medical equipment, no people or goods may be carried on the vessel other than the categories of person enumerated in the provision.

2. ' Respect and protection '

The Article states that medical transport is to be respected and protected in the same manner as civilian hospitals as defined in Article 18 . It may therefore be concluded that they may be regarded as mobile hospitals. On that point, the reader is referred to the Commentary on Article 18 ; for information concerning the origin and significance of the traditional words "respect and protect", reference should be made to what we said about Article 16 concerning the protection of the wounded and sick. To respect medical convoys means, in the first place, not to attack them, not to harm them in any way, which also means not to interfere with their running. The enemy should avoid interfering with them, but that is not enough; he must also allow them to carry out their work. To protect medical convoys etc. means to ensure that they are respected; it may even involve ensuring that they are respected by a third party. It also means giving them help in case of need. As in the case of civilian hospitals and their staff, the protection of medical transport depends on strict abstention from any direct or indirect participation in a hostile act. As is known, the Convention lays down that civilian hospitals are not to be deprived of protection on the ground that wounded and [p.172] sick members of the armed forces are being treated therein. That provision also applies to the medical transport considered in Article 21. By the terms of this Article protection depends on certain restrictive conditions, but that does not in any way mean that where such conditions are not fulfilled, the means of transport, or the wounded and sick, are deprived of all protection. For example, the wounded and sick in vehicles which are moving singly, are still entitled to immunity and remain protected in theory. However, since a single vehicle is not allowed to display the red cross emblem, it is quite certain that its passengers will not in fact have the same guarantees of safety as those travelling in convoys. In short, Article 21, over and above the individual protection due to every wounded or sick person under Article 16 , confers general protection on medical convoys as such.

3. ' Marking '

In order to ensure the protection of civilian medical convoys, the Convention allows them to be marked with the red cross emblem. This is the third example given of the use of the distinctive emblem being extended to civilians. As in the case of the other two (civilian hospitals and their staff) this provision is the result of a compromise between the liberal view, that use of the emblem should be accorded to all civilian medical transport, and the restrictive view aimed at limiting its use. As has been said, the solution embodied in this provision is based on the latter view and the Article illustrates the same anxiety to avoid any danger of diminishing the value of the emblem, as was noted in the commentary on Article 20 . Use of the sign is only extended to well defined groups of people, forming organized units and subject to some form of discipline. It is therefore essential that there should be constant supervision of the use made of the sign. The greatest care should be taken to ensure that the emblem of a red cross on a white ground should only be displayed while the vehicle is used as medical transport and that it should be removed when the work is at an end.Strict orders to that effect must be given to any organization, official or private, which is engaged in medical transport, especially to the officers commanding convoys of vehicles or hospital trains and to the captains of hospital ships. While it must not be pretended that no danger of abuse exists: it is easy to imagine lorries which had brought back civilian wounded from the fighting zone to the rear, under the protection of the red cross, might then return to the front with a load of war material; if the red cross emblem had been not removed by then, a very serious [p.173] violation of the Convention would result. Constant vigilance is therefore required, if it is wished not to weaken the moral authority and protection afforded by the distinctive emblem.

Notes: (1) [(1) p.170] See ' Final Record of the Diplomatic Conference of Geneva of 1949 ', Vol. II-B, pp. 398-399;

(2) [(1) p.171] See ' Final Record of the Diplomatic Conference of Geneva of 1949 ', Vol. II-B. pp. 471-472;